Białystok Legal Studies vol. 24 nr 4
Articles:
Marian Grzybowski
Chancellor of Justice in Swedish, Finnish and Estonian Constitutionality – Eastern Baltic Singularity or an Offer to Consider?
DOI: 10.15290/bsp.2019.24.04.01
Abstract: The article is devoted to the institution of Chancellor of Justice in Sweden, Finland and Estonia. The first part focuses on the genesis of this institution in the three countries. In the second part, the author presents the political position, functions and competences of the Chancellor of Justice. Part three deals with the role of this institution in protecting the rule of law. This work is of a legal comparative nature and includes analysis of the original political system. The fundamental asset of the institution of Chancellor of Justice remains its substantive (meritocratic) character: the requirement of high legal qualifications, objectivity, stability (lack of connection with the political rotation of government teams), and the circle of rights and rules of functioning verified by experience. The effects are also encouraging: stability of legal regulations and their systemic coherence, trust in the legitimacy of the actions of public authorities, and a degree of trust in state officials. These advantages, prompting the institution to “take over” by other political systems and its adaptation on the basis of their political systems, are hampered by poor knowledge of the institution itself, its status and powers.
Keywords: The Chancellor of Justice, Sweden, Finland, Estonia
Page range: 17-38
Anna Michalak
Consequences of Enacting the Fixed-term Parliaments Act 2011 for British Constitutional Parliamentary Practice
DOI: 10.15290/bsp.2019.24.04.02
Abstract: The Fixed-term Parliaments Act 2011 received royal assent on September 15, 2011 and entered into force on that day. The assumption of the project promoters, was that passing this act would result in the repeal of the prerogative of the monarch who, on the prime minister’s advice, could at any time dissolve parliament and initiate parliamentary elections before expiry of the term for which electoral powers were granted to its members.
However, on April 18, 2017, the then prime minister announced that she planned to call a snap election on June 8, 2017. The order for the general election announcement on June 8, 2017 was issued on April 25, 2017. As a result, parliament was dissolved on May 3, 2017.
Considering the above, one can’t but agree with the thesis that the adoption of this law is an example of unnecessary and defective legislation, and that it is also an ineffective act insofar that while the legislative goal was to reduce the frequency of general elections and limit the instrumental influence of the prime minister on the date of dissolution of the parliament, this has not been achieved. This conclusion, along with recently observed systemic reforms and changes in the constitutional practice of the United Kingdom, also allows to say that progressing jurisdiction of the system does not always lead to the achievement of the assumed goals and changes in constitutional practice.
Keywords: Westminster, parliamentary term, no-confidence vote, British parliamentary system
Page range: 39-52
Łukasz Jakubiak
The French System of Government from the Perspective of Sixty Years of Application of the Constitution of the Fifth Republic
DOI: 10.15290/bsp.2019.24.04.03
Abstract: The paper concerns the system of government adopted in the French constitution of 1958 and its evolution in subsequent years. Some attention is given to the origins of the Fifth Republic, which was perceived by the most important creators of the aforementioned constitution as a renewed parliamentary regime. The evolution of this system took place in two ways. First of all, its shape has been set by some constitutional amendments (e.g. the introduction of the general presidential election as well as the shortening of the presidential term to five years). Secondly, these changes have been complemented by the practice of exercising power (e.g. the emergence of informal political responsibility of the government to the head of state). The unwritten rules of political life have consequently become an equally important component of the system of government. This, in turn, contributes to some differences as to how the system of government applied under the Fifth Republic should be defined. At the constitutional level the regime still seems to be quite close to the parliamentary model, but in political practice it gains the characteristics of semi-presidentialism based, inter alia, on double political responsibility of the cabinet.
Keywords: the Fifth French Republic, system of government, parliamentarianism, semi-presidentialism, political responsibility, head of state, government, parliament
Page range: 53-77
Kamila Bezubik
Bundestag and National Parliaments
DOI: 10.15290/bsp.2019.24.04.04
Abstract: The Federal Republic of Germany is a federal state. The general division of competences between the Federation and the Länder, by establishing a presumption of competence in favour of the Länder, shall be enshrined in a Basic Law. The system of division of powers emphasizes the need for the Federation and the Länder to work together in individual matters. Hence, the model of federalism adopted in the Basic Law is referred to as cooperative federalism. The main focus here is on cooperation between the federal government and the federal states. Cooperation between the Federation and the Länder may take different forms. Some of them are defined in the Basic Law. Through the Bundesrat, the Länder shall act in the legislation and administration of the Federation as well as in the affairs of the European Union. They shall participate in the election of federal organs: the Federal President shall be elected by the Federal Assembly. Interaction at parliamentary level is different: Bundestag and national parliaments. Despite the lack of constitutional regulations, informal cooperation mechanisms have been developed at the level of contacts between the Bundestag and the Landtags. The Länder are ready to cooperate, but there is also a willingness to maintain their independence.
Keywords: German federalism, cooperation, constitution
Page range: 79-88
Krzysztof Prokop
The Federal Government in Belgium (Constitutional and Administrative Aspects)
DOI: 10.15290/bsp.2019.24.04.05
Abstract: This article is devoted to the constitutional position of the Federal Government in Belgium. In the parliamentary system of government the cabinet is a body of executive power. However, according to the original version of the Belgian Constitution of 1831, there was no collegial body of the executive power. To this day the constitution still states that executive power belongs to the King. In practice the Cabinet exercises competences reserved for the King – ministers countersign all royal acts. For this reason, the whole of the executive branch is exercised by the Federal Government. The article discusses the most important aspects of the constitutional position of the Federal Government as a body of executive power: the organization and composition of the Federal Government, the tasks and powers of the Federal Government, and the political responsibility of the Federal Government and its members. According to the author it is determined by two basic factors: evolution of the parliamentary system of government and the federal structure of the state, which is associated with linguistic and ethnic divisions.
Keywords: Belgium, government, prime minister, minister, king, parliament
Page range: 89-104
Monika Giżyńska
The Institution of the President in the Republic of Lithuania
DOI: 10.15290/bsp.2019.24.04.06
Abstract: The article is devoted to analysis of the institution of the President in the Republic of Lithuania. It requires underlining that factors determining the position of the President in the State are: the manner in which the office is filled, the exercise period of his power of attorney (from the time of taking office to the end of the presidential term), the liability he incurs and the functions he performs. The author presents the genesis of the institution of the head of state in Lithuania from the period of the first statehood in 1918 until full sovereignty in 1990, taking into account the above factors. The author sketches the current position of the President in the system of authorities. It presents the principles of electoral law for the office of President and characterizes the electoral procedure involved. The Author also presents the rules of liability of the head of state, emphasizing in particular the special nature of responsibility before the Sejm. Further, she distinguishes functions which, according to the Constitution of the Republic of Lithuania of 1992, are fulfilled by the President of Lithuania as the head of state.
Keywords: President, Republic of Lithuania, elections, the system of authorities
Page range: 105-117
Katarzyna Szwed
The Construction of the Institution of a Nationwide Referendum in the Estonian Constitutional System
DOI: 10.15290/bsp.2019.24.04.07
Abstract: Currently, the only form of direct democracy in Estonia is the referendum. The Constitution of the Republic of Estonia adopted in 1992, provides for both obligatory and optional referendums. Constitutional, legislative and referendums related to certain issues are distinguished according to the subject matter of the vote. The institution was also known to the Estonian Constitution of 1920. While the referendum plays a limited role in Estonian political life, it still remains a crucial element of its constitutional system. It should be noted that thus far its use has been limited to important issues such as the adoption of the constitution and accession to the structures of the European Union. In Estonia, the exclusive right to hold a referendum is vested in the parliament, or the order to hold a referendum results directly from constitutional provisions. A referendum shall be deemed to be binding regardless of voter turnout. The main objective of the study is to analyse the legal construction of the institution and to identify the reasons behind the minimal application of referendums in the country’s political practice. The chronological scope of the work includes the practice of using referendums since 1991.
Keywords: Estonia, referendum, direct democracy
Page range: 119-132
Artur Olechno
Sources of the Democratic Principles of the Constitution of Ukraine
DOI: 10.15290/bsp.2019.24.04.08
Abstract: The article is dedicated to the historical sources of constitutional principles contained in the Constitution of Ukraine (1996). The author focuses primarily on selected basic principles for the system of exercising power and legal order of the Ukrainian state, such as the principle of the republican form of the state, the principle of sovereignty and independence of the state, the principle of national sovereignty, the principle of the social state, the democratic state and the rule of law, the principle of a unitary state, the republican form of government, the principle of political pluralism and the principle of division of powers, whose roots can be found in the first constitutions and drafts of the pre-state period created at the end of the nineteenth and the beginning of the twentieth century; the Ukrainian People’s Republic (1917-1918, 1918-1920), the Pavlo Skoropadskyi Ukrainian State, the West-Ukrainian People’s Republic (1918-1920), and early projects that were created after the republican authorities left the country.
Keywords: Ukraine, constitution, constitutional principles
Page range: 133-141
DOI: 10.15290/bsp.2019.24.04.09
Abstract: The existing grounds for granting and terminating Belarusian and Polish parliamentary mandates from the legal point of view are nowadays rather debatable. The article presents a comparative study of these legal categories based on the considerable historical, regional and legal similarity of the above neighbouring countries and their legal doctrines. The main conclusion of this article is that a large number of similar legislative provisions is related to their essence and is preconditioned mainly by the common origin of Polish and Belarusian parliamentary institutions. Their main point is that the grounds for granting and terminating parliamentary mandates, as an integral element of their legal status, sets the time frame for exercising the authority of both Polish and Belarusian members of parliament. The existing differences between the above legal categories manifest themselves, first and foremost, in their formal expression – the implementation procedure.
Keywords: the grounds for granting mandates of parliamentarians, the grounds for terminating mandates of parliamentarians, Parliament, Belarus, Poland
Page range: 143-152
Stanisław Bożyk
The Political Position of the Knesset in the Constitutional System of Modern Israel
DOI: 10.15290/bsp.2019.24.04.10
Abstract: The article deals with the political position and the role of the Knesset, the unicameral parliament of modern Israel. In the first instance, the author presents the constitutional status of the Knesset, whose legal basis for activity includes – in the absence of a classic written constitution – the Basic Act on the Knesset from 1958. Further reflections focus on the Knesset’s place in the basic principles of the political system of the State of Israel and show the relationship between the Knesset and the executive. The author draws particular attention to the principles of conducting elections to the Knesset, the status of its members, and both its structure and operation. It also does not overlook the fundamental functions of the parliament, especially its legislative function. The concise analysis of the Knesset’s political position made here, makes it convincingly clear that the Israeli parliament has many specific features and plays a decisive role in the system of Israel’s organs of state.
Keywords: Israel, basic laws, Knesset, parliament
Page range: 153-171
Joanna Kowalewska
The Constitutional Foundations of the Structure of the Supreme Federal Authorities in the United Arab Emirates
DOI: 10.15290/bsp.2019.24.04.11
Abstract: The article is devoted to the analysis of the constitutional foundations of the structure of the supreme federal authorities in the United Arab Emirates. According to the constitution these organs are: the Federal Supreme Council, the President and his Deputy, the Councils of Ministers, the Federal National Council and the Federal Judiciary. Each of these authorities has been briefly characterized here, showing all the specific features of the system of supreme state organs. The constitutional regulation of the system of supreme authorities in the United Arab Emirates is significantly expanded, but the Basic Law does not explicitly formulate the principle of the separation of powers. The most important body is the Federal Supreme Council, which is formed by the monarchs of the seven emirates. This structure of federal authorities is very original. It works in political practice, so as a consequence, the system of governance in the United Arab Emirates is exceptionally stable for an Islamic state in this region.
Keywords: Constitution of the United Arab Emirates, federal system, separation of powers, emirates
Page range: 173-188
Igor Szpotakowski
The Constitutional Framework of the Political System in the People’s Republic of China
DOI: 10.15290/bsp.2019.24.04.12
Abstract: The main purpose of this article is to explain the changes that have taken place in recent years in the political and constitutional system of the People’s Republic of China. It focuses on providing basic information about the characteristics of the Chinese system of government, presentation of the most important ideologies, description of individual competences and the structure of central bodies, such as: the National People’s Congress, the NPC’s Standing Committee, the President and Vice-President of the PRC, the State Council, the Central Military Commission and the judiciary, and in particular the Supreme People’s Court, the prosecutor’s offices with the Supreme People’s Procuratorate, the supervisory commission, the legislative mode and the party system, as well as highlighting the changes that followed the amendment to the constitution of the PRC which occurred in 2018. The article aims at providing the most up-to-date knowledge on the shape of the Chinese political system and its legal order on the 70th anniversary of the PRC’s creation. The article also aims to solve a significant research problem: did the amendment to the Constitution of the PRC of 2018, which inter alia abolished the term of office of the chairman and vice-chairman of the PRC, disturb the existing balance of power thus leading to the gradual transition of the system of government in the Middle Kingdom from a parliamentary system to a presidential one?
Keywords: China, system of government, constitution, law, amendment
Page range: 189-205
Andrzej Pogłódek
Legislative, Executive and Judicial Branch in the Nagorno-Karabakh Constitution of 20 February 2017
DOI: 10.15290/bsp.2019.24.04.13
Abstract: The subject of the article is the presentation of the system of government in the Nagorno-Karabakh Republic in the light of the Constitution of 20 February 2017, paying attention to the genesis and external conditions of the systemic changes in this country not recognized. The first basic law of this state was adopted only in 2006, and it constituted the basis of the Armenian republic of Karabakh until 2017. In terms of the regime, Nagorno-Karabakh was a republic of the presidential-parliamentary form of government. The constitutional regime of Nagorno-Karabakh was influenced by the achievements of the constitutional Republic of Armenia. Also, systemic changes carried out in 2017 were related to the previous amendment of the Constitution in Armenia. However, eventually they went in a different direction. In Nagorno-Karabakh, the president’s power was strengthened, while in Armenia a model of parliamentary rule was introduced. However, the system of Nagorno-Karabakh is not a model presidential system but a systemic hybrid, which is becoming increasingly more common in the contemporary political landscape.
Keywords: Nagorno-Karabakh, Caucasus, unrecognized states, president, system of government
Page range: 207-228
Jerzy Szukalski
Evolution of the Constitutional Position of the Parliament of Tajikistan in the Light of Constitutional Reforms in the Years 1990-2016
DOI: 10.15290/bsp.2019.24.04.14
Abstract: The article discusses the evolution of the constitutional position of the parliament of Tajikistan in the period from 1990 till 2016, which initially was a unicameral legislature Supreme Council of the Tajik Soviet Socialist Republic, and since 1994 the unicameral Majlisi Oli, which in 1999 was subsequently transformed into a bicameral parliament. The basis for the analysis were the provisions of the revised Tajik Soviet Socialist Republic Constitution of 14 April 1978, the Constitution of Tajikistan of 6 November 1994 together with its amendments of 26 September 1999, 22 June 2003 and 22 May 2016. The functions of the parliament, its relations with other state authorities, as well as the state system of government are presented at some length. Furthermore, the political and tribal circumstances, which have a significant impact on the real constitutional position of the Tajik parliament, are also discussed.
The final observations point to the existence of three stages in the development of the political position of the parliament, namely in 1990-1994, 1994-1999 and 1999-2016. Collectively these indicate that constitutional reforms resulted in a progressive decline in the position of the parliament in favour of executive power, especially that of the president, who became the dominant authority in the constitutional and political systems of Tajikistan.
Keywords: Tajikistan, parliament, constitution, president
Page range: 229-248
Justyna Eska-Mikołajewska
Constitutional Consequences of Reforms on the Fijian Electoral System as a State Functioning in the Conditions of an Ethnically Divided Society
DOI: 10.15290/bsp.2019.24.04.15
Abstract: The article presents the issues of the Fijian electoral system. As Fiji in the initial period of its existence was a British colony, its legal and political system was influenced by the Westminster form of government. The political system and the policy of independent Fiji have since been shaped by an ethnic factor, and more specifically the relationship between the indigenous population and the Indo-Fijians who have arrived in Fiji since the nineteenth century. The gradual escalation of tension in the state led to as many as four coups, practically alternated with democratic elections, the rules of which have been regulated by four successive constitutions. The analysis undertaken allows to present the evolution of the electoral system against the background of the development of Fijian constitutionalism from the moment of independence until adoption of the Constitution of the Republic of Fiji in 2013. The evaluation of how electoral reforms influenced political cooperation in this state, also allows to indicate that the solution of problems related to its functioning will not occur through frequent institutional changes as they do not create a stable legal framework. Conversely, they contribute to the escalation of the conflict in the struggle for a power that is representative and able to rule. In this article, the author has adopted the following research methods: the critical analysis method and descriptive method as well as the analysis of legal sources.
Keywords: electoral system, constitution, Fiji, ethnicity, ethnically divided society
Page range: 249-266
DOI: 10.15290/bsp.2019.24.04.16
Abstract: If we were to list a few of the most controversial fragments of the United States Constitution, the Second Amendment would surely be one of them. In spite of the fact, that the Second Amendment is rather short, it abounds in phrases that are not necessarily understandable to modern-day readers. Terms such as militia, bear arms or security of a free state are literally easy to understand, yet all of them refer to some abstract ideas the meaning of which is not as clear today as it was two centuries ago. In order to explain the difficulties and variations in meaning of the Second Amendment, the author of this paper came to the conclusion that it was reasonable to attempt to properly interpret it’s content. After portraying the two renderings of the Second Amendment – the “individual right” model (also known as the standard model) and the “states’ right” model (otherwise known as the collective right model), the author performs a linguistic interpretation of the provision while also referring to it’s historical, systemic and functional aspects. Also, the paper summarises the views of supporters of both the individual right model and the collective right model. Finally, conclusions are drawn and the author attempts to answer the question of what constitutes the cause of the differences in interpretation discussed.
Keywords: American Constitution, gun law, Second Amendment, individual right model, collective right model, linguistic interpretation
Page range: 267-279
Piotr Uziębło
The Principle of Representation in the Oriental Republic of Uruguay
DOI: 10.15290/bsp.2019.24.04.17
Abstract: The current Constitution of Uruguay directly points to the principle of representation as one of the fundamental principles of the political system. However, it does not explicitly specify whether this principle is implemented only by representative bodies, especially parliament, or whether the representative body may also be considered the head of state (president), elected – like the parliament – by way of a general election in which both are elected simultaneously. Nevertheless, it can be concluded that the Uruguayan Basic Law indirectly allows that this second understanding of representative bodies to be accepted. The representation in Uruguay is based on the non-Rousseau model of representation, which is manifested by the existence of a free mandate, but also implies the need for broad social legitimacy for representatives in the parliament. This legitimacy is associated with the adoption of a form of electoral law, which allows obtaining a mandate by a wide range of political entities, including factions within political parties. This is mainly due to the division of parliamentary mandates at the national level and the lack of electoral thresholds conditioning participation in the distribution of parliamentary seats. It should be added that the principle of representation is complemented by the mechanisms of direct social participation provided for in the constitution, i.e. a referendum and popular initiative, which are used in the political practice of the state.
Keywords: Uruguay, the principle of representation, elections, parliamentary mandate, referednum
Page range: 281-295
Commentary:
DOI: 10.15290/bsp.2019.24.04.18
Page range: 299-312
Review:
Stanisław Bożyk
Gregorio Badeni, Tratado de derecho constitucional, vol. 1-3, Editorial La Ley, Buenos Aires 2010, pp. 3 152
DOI: 10.15290/bsp.2019.24.04.19
Page range: 315-318